Michael Phillips

When State Transparency Laws Meet Federal Supremacy: The Legal Limits of Maryland’s SB 1

By Michael Phillips | People’s Law Review

Overview

A January 21, 2026 advisory letter issued by the Office of the Maryland Attorney General has clarified the constitutional boundaries of Senate Bill 1 (SB 1), a proposal that would prohibit law enforcement officers from wearing face coverings while performing official duties, subject to limited exceptions.

The opinion—issued under the authority of Attorney General Anthony G. Brown and signed by an assistant attorney general—does not assess the bill’s policy merits. Instead, it addresses a narrower question: what Maryland may regulate, and what the Constitution forbids it from regulating, particularly when federal law enforcement is involved.

What SB 1 Regulates

SB 1 seeks to criminalize the wearing of face coverings by law enforcement officers during official duties, with exceptions for health, safety, or emergency circumstances.

As a matter of state constitutional law, legislatures generally possess broad police powers to regulate:

  • State agencies and officers
  • County and municipal departments
  • Public safety standards applicable to state-created entities

Nothing in existing precedent categorically prevents a state from imposing identification or uniform requirements on its own law enforcement officers.

State Authority: Broad but Not Unlimited

The Attorney General’s analysis begins with a foundational principle: states may regulate their own officers.

Courts have long recognized that states retain primary authority over internal governance of state and local agencies. Laws setting standards for training, conduct, or appearance of state officers are routinely upheld when they do not infringe on protected constitutional rights.

As applied solely to Maryland state and local law enforcement, SB 1 is therefore not clearly unconstitutional on its face.

The Supremacy Clause Problem

The constitutional difficulty arises when a state law attempts to reach federal officers.

Article VI of the U.S. Constitution provides that federal law “shall be the supreme Law of the Land.” Under this Supremacy Clause, states may not:

  • Regulate federal agencies
  • Criminalize conduct undertaken by federal officers pursuant to federal authority
  • Interfere with the execution of federal law

This principle is reinforced by the doctrine of intergovernmental immunity, which bars states from directly regulating or burdening federal operations.

Intergovernmental Immunity in Practice

The U.S. Supreme Court has repeatedly invalidated state laws that intrude on federal functions, even when those laws are facially neutral.

Key precedents include:

  • McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)
    Establishing that states may not control or impede valid federal operations.
  • Johnson v. Maryland, 254 U.S. 51 (1920)
    Holding that a state could not require a federal postal employee to obtain a state driver’s license to perform federal duties.
  • Arizona v. United States, 567 U.S. 387 (2012)
    Reaffirming that states may not create enforcement schemes that interfere with federal immigration policy.

Under these cases, even indirect regulation—such as criminal penalties that alter how federal officers carry out their duties—can violate the Constitution.

Application to Federal Law Enforcement

Federal immigration enforcement, including operations conducted by Immigration and Customs Enforcement (ICE), is an exclusively federal function.

The Attorney General’s letter explains that Maryland cannot:

  • Prosecute federal agents for conduct undertaken during lawful federal operations
  • Impose state criminal penalties that alter federal enforcement practices
  • Use state law to compel compliance with state policy preferences

Even if no federal statute expressly requires officers to wear face coverings, the absence of a federal mandate does not create state authority to regulate federal officers.

Cooperative Agreements Do Not Expand State Power

Some confusion arises from cooperative enforcement arrangements, such as those authorized under Section 287(g) of the Immigration and Nationality Act.

The advisory letter clarifies that these agreements:

  • Permit limited cooperation by state officers
  • Do not transfer regulatory authority to states
  • Do not subject federal officers to state criminal law

Operational control remains with the federal government.

Likely Judicial Treatment

If SB 1 were enacted and challenged, courts would likely distinguish between:

  • Permissible applications (state and local officers)
  • Impermissible applications (federal officers)

Such “as-applied” rulings are common in federalism cases. A court could uphold SB 1 in part while enjoining its enforcement against federal law enforcement.

Why the Advisory Letter Matters

Attorney General advisory opinions do not bind courts, but they:

  • Reflect the considered legal position of the state
  • Put legislators on notice of constitutional risk
  • Shape how enforcement agencies interpret new statutes

When a legislature proceeds despite a clear warning, resulting litigation is more predictable—and more difficult to defend.

Conclusion

SB 1 illustrates a recurring tension in American constitutional law: the boundary between state police powers and federal supremacy.

Maryland may regulate its own law enforcement agencies.
It may not regulate the federal government.

The Attorney General’s office has now articulated that boundary in writing. Whether lawmakers choose to tailor the bill accordingly—or accept the legal risks of broader language—remains a policy decision rather than a constitutional one.

People’s Law Review — Neutral Legal Analysis

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